25 July 2003

Sally Trebble

On 17th July 2003, the Communications Act 2003 entered into force. Mostly enabling legislation, leaving the practical decisions to the new Office of Communications, the ‘Comms Act’ replaces much of the 1984 Telecommunications Act and the statutory instruments which implemented the 1998 package.

The most high profile innovation is the empowerment of the Office of Communications as a UK ‘super-regulator’, to be known as OFCOM. Although OFCOM was not established by the Comms Act (but rather by the Office of Communications Act 2002), the Comms Act gives OFCOM the power of rule making which extends across the entire electronic communications sector. This brings together regulation of telecommunications, radio spectrum, commercial radio and television broadcasting and the Internet as well as broadcast standards enforcement, for the first time. There is some limited authority over public service broadcasters such as the BBC.

The Communications Act reflects the provisions in the EU Directives by enabling OFCOM to take decisions, based on market reviews and domestic circumstances. There is little in the Act which actually qualifies as hard policy which OFCOM only enforces. For example, the Act creates the General Authorisation environment, but OFCOM has the power to determine whether operators should pre-notify or not.

OFCOM will take up its powers in December 2003, until which time it is the Office of Telecommunications which will be responsible for giving practical effect to the Directives' provisions. OFTEL has published the General Authorisation as well as its General Conditions of Entitlement. Content licensing remains unchanged for the present although the Act provides for new ‘Television Licensable Content Services’ licences. It is expected that OFCOM will encourage those whom it regulates to ‘self-regulate’ – to take responsibility for their own activities, based on industry guidelines if necessary, on the grounds that self-regulation is consistent with a competitive market in a way that state intervention is not.

OFTEL and then OFCOM will generally consult on proposed measures giving effect to the Directives, and Commencement Orders will be drawn up and brought into force by the Department of Trade and Industry.